Peter Buckley in High Court Jewish Transgender Case
BEFORE Mr JUSTICE PETER JACKSON
IN THE FAMILY COURT SITTING AT MANCHESTER
2017 EWFC 4
Counsel for Mother - Peter Buckley instructed by Steinberg Solicitors
SYNOPSIS OF DECISION
- These proceedings concerned five children, their parents and the North Manchester Charedi Jewish Community. The parents’marriage ended in June 2015 when the father left home to live as a transgender person. He now lives as a woman and has no contact with the children since she left. The case was transferred to High Court Level.
- Evidence was heard from the parents, five witnesses in respect of Jewish law and customs including experts from the Anna Freud Centre and from the Children’s Guardian.
- The father sought direct contact following a sensitive reintroduction to the children. Mother opposed any contact and would only accept that the children should have indirect contact with their father three times a year.
- The children’s guardian and the Anna Freud Centre concluded by a narrow margin and with reluctance that the benefits to the children of resuming contact with their father would be outweighed by the harmful community reaction which would be visited upon the family. They recommended indirect contact only.
- The children live in the ultra-orthodox community in North Manchester. Jewish law is derived from the Torah. For a Charedi family Jewish law governs behaviour in the realms of food, dress, education, speech, communal responsibility and respect for elders, religious education, culture and heritage. The dress, particularly for the men is distinctive and women cover their hair in public frequently by wearing a wig and wearing modest dress.
- On behalf of the father extensive reference was made to gender recognition legislation and to equality legislation including the Equality Act 2010. In addition, Articles 8, 9 and 14 of the ECHR were cited.
- The Judge heard evidence from experts in Jewish law and practice including from two Rabbis. In addition, he heard evidence from members of the community who described how difficult it would be for the children to continue to live in the community if they were to continue to see their transgender father. They would be ostracised.
- The Judge applied the Welfare Checklist. The factors which spoke against face to face contact related to the father’s dependability but primarily to the community’s reaction to direct contact. The Judge concluded that there was a real risk amounting to a probability that the children and their mother would be rejected by the community if the children were to have face to face contact with their father. He concluded with real regret that direct contact must be refused. He made an offer for indirect contact to take place four times a year and a Family Assistance Order for 12 months. The Anna Freud Centre would offer advice on the terms of the narrative which were to be communicated to the children. The Judge concluded by saying, “This outcome is not a failure to uphold transgender rights, still less a ‘win’ for the community, but the upholding of the rights of the children to have the least harmful outcome in a situation not of their making.”